Plaintiff in Whistleblower case did not trigger court’s jurisdiction since facts alleged did not violate any law.

Lubbock-Crosby County Community Supervision and Corrections Department et al. v. Shane Lance, 07-14-00222-CV (Tex. App. – Amarillo, December 22, 2014)

This is a Texas Whistleblower lawsuit where the Seventh District Court of Appeals reversed the denial of the entities plea to the jurisdiction.

Lance was jointly employed by the counties’ Corrections Department and the Juvenile Board. For those that do not know, such a situation is not uncommon when dealing with juveniles in the correction systems.  Prior to his joint employment he worked in the Child Protective Services section of the Texas Department of Family and Protective Services (“CPS”). Lance was approached by co-workers at the Department and Board about the care being given to a specific child by the mother. Lance contacted a former assistant at CPS regarding the matter, however nothing in his call or email indicated any immediate danger to the child. Several months later the child went missing and was found dead. Lance allegedly reported to various law enforcement entities including the Sheriff and Texas Rangers that CPS had decided a non-emergency removal was needed but was never executed. Lance contacted CPS legal counsel and informed her CPS employees were going to go to jail due to the mishandling of the case. He also released confidential autopsy reports.  Lance was later terminated for threatening CPS employees and releasing confidential information. Lance sued both employers. The trial court denied the pleas and the entities appealed.

The court first noted the determination of whether a violation of law is reported is a question of law, not fact. The reporting of a violation invokes the waiver of sovereign immunity only if the conduct reported by the plaintiff constitutes a violation of law. And while Lance listed 11 statues allegedly implicated by his report, none of the conduct, if true, would constitute a violation. Lance’s report did not indicate any deficiencies in the investigation only that CPS did not follow through on the nonemergency removal after the investigation was complete. Further, included in Lance’s 11 statutes are such things as the Penal Codes definition section of culpable mental state, which does not criminalize anything but only define matters criminalized by other statutory sections. End the end, Lance’s report was the failure to effectuate the nonemergency removal of the child, which CPS could not have done anyway. CPS is required by law to file paperwork with the court seeking a removal and requires a court order to follow through. Failing to file paperwork is not a violation. Since no violation of law was specified, no Whistleblower protection attaches and no waiver of immunity exists. The plea should have been granted.

If you would like to read this opinion click here. Panel: Justice Quinn, Justice Campbell, and Justice Hancock.  Memorandum Opinion by Justice Hancock.  The attorney listed for Lance is John Judge.  The attorney listed for the Corrections Department is Drew Harris. The attorneys listed for the Juvenile Board are Matt D. Matzner and Traci D. Siebenlist


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